Justice Reed and the First Amendment: The Religion Clauses

By F. William O'Brien | Go to book overview

VI The new doctrine

BESIDES forbidding Congress to interfere with the free exercise of religion, the First Amendment reads that "Congress shall make no law respecting an Establishment of Religion." Previous to 1947 the Supreme Court had never essayed to elaborate at any length on the full meaning of this injunction. On February 10 of that year, however, the Court handed down a decision1 momentous for two reasons: first, the majority opinion and two dissenting opinions, seventy-two pages in all, were largely devoted to an interpretation of the meaning of the "establishment" clause; secondly, all nine justices agreed that the prohibition applied equally to state governments as to the National Congress.

The facts of the Everson case are as follows: Pursuant to a state statute, a New Jersey school board authorized the reimbursement to parents of money expended by them for the transportation of their children to the public or Catholic parochial schools. Everson, a taxpayer, challenged the right of the Board to reimburse parents whose children attended Catholic schools.2 His first contention was that the practice violated the due process clause of the Fourteenth Amendment inasmuch as the private property of some was taken by taxation and bestowed upon others, to be used for their own private purposes, to wit, religious education.3 His second contention was that the statute was a "law respecting the establishment of religion."

The Court, through Justice Black, upheld the state

____________________
1
Everson v. Board of Education, 330 U.S. 1 ( 1947).
2
Ibid.
3
Ibid., 5.

-107-

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Justice Reed and the First Amendment: The Religion Clauses
Table of contents

Table of contents

  • Title Page iii
  • Acknowledgments vii
  • Contents ix
  • Introduction 3
  • Part I- The "Free Exercise" Clause 11
  • I- Reed''s Position Undefined 13
  • II- Patterns of Division 20
  • III- Modest Victories 45
  • IV- Doubts Plague the Court 69
  • V- Emerging Leadership 80
  • Part II- The "Establishment" Clause 105
  • VI- The New Doctrine 107
  • VII- Reed and Incorporation 111
  • IX- An Evaluation of Reed''s Dissent 145
  • X- Life with Mccollum 154
  • Part III- Constitutional Principles of Justice Reed 195
  • XII- The Critics and Reed''s Liberalism 197
  • XIII- Reed and Pluralistic Democracy 208
  • XIV- Federalism and the Separation of Powers 221
  • XV- Reed and Judicial Restraint 232
  • Bibliography 243
  • Index 257
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